Anderson v. Commissioner of Social Security

Filing 30

OPINION AND ORDER: Court GRANTS the relief requested in Brief in Support of Plaintiffs Motion for Summary Judgment DE 20 and REMANDS this matter for further proceedings consistent with this opinion. Signed by Magistrate Judge John E Martin on 2/10/16. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JAMES ANDERSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

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CAUSE NO.: 2:14-CV-436-JEM

OPINION AND ORDER
This matter is before the Court on a Complaint [DE 1], filed by Plaintiff on November 26,
2014, and Brief in Support of Plaintiff’s Motion for Summary Judgment [DE 20], filed on April 30,
2015. Plaintiff requests that the decision of the Administrative Law Judge be reversed and remanded
for further proceedings. On August 7, 2015, the Commissioner filed a response, and on September
4, 2015, Plaintiff filed a reply. For the following reasons, the Court grants Plaintiff’s request for
remand.
PROCEDURAL BACKGROUND
On December 30, 2011, Plaintiff filed an application for benefits alleging that he became
disabled on April 21, 2007. Plaintiff’s application was denied initially and upon reconsideration.
On May 28, 2013, Administrative Law Judge (“ALJ”) Laurel J. Greene held a video hearing at
which Plaintiff, with an attorney representative, and a vocational expert (“VE”) testified. On June
10, 2013, the ALJ issued a decision finding that Plaintiff was not disabled. The Appeals Council
denied Plaintiff’s request for review, leaving the ALJ’s decision the final decision of the
Commissioner.
The ALJ made the following findings under the required five-step analysis:

1.

The claimant meets the insured status requirements of the Social Security Act
through December 31, 2012.

2.

The claimant has not engaged in substantial gainful activity since April 21,
2007, his alleged onset date.

3.

The claimant has the following severe impairments: residuals from right
femur and left knee surgeries.

4.

The claimant does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1.

5.

The claimant has the residual functional capacity to lift and carry up to 20
pounds occasionally, 10 pounds frequently, stand and/or walk about 6 hours
in an 8-hour workday and sit about 6 hours in an 8-hour workday with
normal breaks. The claimant can occasionally climb ladders, ropes, or
scaffolds, and can occasionally walk on wet, uneven surfaces.

6.

The claimant is unable to perform any past relevant work.

7.

The claimant was 45 years old, which is defined as a young individual age
18-49 on the alleged disability onset date. The claimant subsequently
changed age category to closely approaching age.

8.

The claimant has at least a high school education and is able to communicate
in English.

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that the claimant is “not disabled” whether or not the claimant has
transferable job skills.

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform.

11.

The claimant has not been under a disability from April 21, 2007, through the
date of the decision.

The parties filed forms of consent to have this case assigned to a United States Magistrate
Judge to conduct all further proceedings and to order the entry of a final judgment in this case.

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Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42
U.S.C. § 405(g).
FACTS
Plaintiff has been diagnosed with diabetes melliuts, type II, and has difficulties with blurred
vision. He has a history of special education, below-average IQ, learning disabilities, anxiety, and
depression. After Plaintiff broke his femur in 1981, it was repaired by implanting a rod into it. In
August 2004, Plaintiff ruptured his anterior cruciate ligament and tore the medial meniscus in his
knee. He reports continued pain in his left knee and right hip, and uses a cane to aid in his balance
a few days per week.
STANDARD OF REVIEW
The Social Security Act authorizes judicial review of the final decision of the agency and
indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by
substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ will
reverse only if the findings are not supported by substantial evidence or if the ALJ has applied an
erroneous legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). Substantial
evidence consists of “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting Gudgel v.
Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)).
A court reviews the entire administrative record but does not reconsider facts, re-weigh the
evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment
for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227
F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the

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question upon judicial review of an ALJ’s finding that a claimant is not disabled within the meaning
of the Social Security Act is not whether the claimant is, in fact, disabled, but whether the ALJ
“uses the correct legal standards and the decision is supported by substantial evidence.” Roddy v.
Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618
(7th Cir. 2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart,
381 F.3d 664, 668 (7th Cir. 2004)). “A reversal and remand may be required, however, if the ALJ
committed an error of law or if the ALJ based the decision on serious factual mistakes or omissions.”
Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014) (citations omitted).
At a minimum, an ALJ must articulate her analysis of the evidence in order to allow the
reviewing court to trace the path of her reasoning and to be assured that the ALJ considered the
important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55
F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must
“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that, as a reviewing
court, we may assess the validity of the agency’s final decision and afford [a claimant] meaningful
review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see
also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of
evidence, but must provide a ‘logical bridge’ between the evidence and his conclusions.”); Zurawski
v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some glimpse into
the reasoning behind [the] decision to deny benefits.”).
DISABILITY STANDARD
To be eligible for disability benefits, a claimant must establish that he suffers from a
“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as

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an inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). To be found disabled, the claimant’s impairment must not only prevent him from
doing her previous work, but considering his age, education, and work experience, it must also
prevent him from engaging in any other type of substantial gainful activity that exists in significant
numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f),
416.920(e)-(f).
When a claimant alleges a disability, Social Security regulations provide a five-step inquiry
to evaluate whether the claimant is entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The steps are: (1) Is the claimant engaged in substantial gainful activity? If yes, the claimant is not
disabled, and the claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have
an impairment or combination of impairments that are severe? If not, the claimant is not disabled,
and the claim is denied; if yes, the inquiry proceeds to step three; (3) Do(es) the impairment(s) meet
or equal a listed impairment in the appendix to the regulations? If yes, the claimant is automatically
considered disabled; if not, then the inquiry proceeds to step four; (4) Can the claimant do the
claimant’s past relevant work? If yes, the claimant is not disabled, and the claim is denied; if no,
then the inquiry proceeds to step five; (5) Can the claimant perform other work given the claimant’s
Residual Functional Capacity (“RFC”), age, education, and experience? If yes, then the claimant
is not disabled, and the claim is denied; if no, the claimant is disabled.

20 C.F.R. §§

404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v); see also Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th
Cir. 2004).

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At steps four and five, the ALJ must consider an assessment of the claimant’s RFC. The
RFC “is an administrative assessment of what work-related activities an individual can perform
despite [his] limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir. 2001) (citing SSR 968p, 1996 WL 374184 (July 2, 1996); 20 C.F.R. § 404.1545(a)) (other citations omitted). The RFC
should be based on evidence in the record. Craft v. Astrue, 539 F.3d 668, 676 (7th Cir. 2008) (citing
20 C.F.R. § 404.1545(a)(3)). The claimant bears the burden of proving steps one through four,
whereas the burden at step five is on the ALJ. Zurawski, 245 F.3d at 886; see also Knight v. Chater,
55 F.3d 309, 313 (7th Cir. 1995).
ANALYSIS
A.

Residual Functional Capacity
Plaintiff argues that the ALJ’s RFC assessment was incomplete and not properly determined.

The Commissioner argues that the ALJ’s findings are supported by substantial evidence.
“The RFC is an assessment of what work-related activities the claimant can perform despite
h[is] limitations.” Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); see also 20 C.F.R. §§
404.1545(a)(1); 416.1545(a)(1). In evaluating a claimant’s RFC, an ALJ is expected to take into
consideration all of the relevant evidence, including both medical and non-medical evidence. See
20 C.F.R. §§ 404.1545(a)(3); 416.945(a)(3). According to SSA regulations:
The RFC assessment must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical
facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily
activities, observations). In assessing RFC, the adjudicator must
discuss the individual’s ability to perform sustained work activities
in an ordinary work setting on a regular and continuing basis (i.e., 8
hours a day, for 5 days a week, or an equivalent work schedule), and
describe the maximum amount of each work-related activity the
individual can perform based on the evidence available in the case
record. The adjudicator must also explain how any material
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inconsistencies or ambiguities in the evidence in the case record were
considered and resolved.
SSR 96-8p at *7. Although an ALJ is not required to discuss every piece of evidence, she must
consider all of the evidence that is relevant to the disability determination and provide enough
analysis in her decision to permit meaningful judicial review. Clifford, 227 F.3d at 870; Young, 362
F.3d at 1002. In other words, the ALJ must build an “accurate and logical bridge from the evidence
to his conclusion.” Scott, 297 F.3d at 595 (quoting Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir.
2002)).
Plaintiff argues that although the ALJ found that Plaintiff had limitations in concentration,
persistence, and pace, the RFC did not account for these limitations. The Commissioner argues that
because the limitations in concentration, persistence, and pace were mild, they were not a severe
impairment and did not significantly limit his mental ability to do basic work activities.
“Although [] impairments may not on their own be disabling, that would only justify
discounting their severity, not ignoring them altogether. Moreover, . . . an ALJ must consider the
combined effects of all of the claimant’s impairments, even those that would not be considered
severe in isolation.” Terry v. Astrue, 580 F.3d 471, 477 (7th Cir. 2009); see also Martinez v. Astrue,
630 F.3d 693, 698 (7th Cir. 2011) (“Even if each problem assessed separately were less serious than
the evidence indicates, the combination of them might be disabling.”); Getch v. Astrue, 539 F.3d
473, 483 (7th Cir. 2008) (“[A]n ALJ is required to consider the aggregate effects of a claimant’s
impairments, including impairments that, in isolation, are not severe.”) (citing 20 C.F.R. §
404.1523); Golembiewski v. Barnhart, 322 F.3d 912, 918 (7th Cir. 2003)).
In this case, the ALJ mentioned Plaintiff’s mild limitations in concentration, persistence, and
pace, as well as his learning disorder and depression, concluding that “the records failed to
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document more than minimal limitations as a result.” She considered the combination of depression
and a learning disability, but did not explain how those limitations might affect or further limit
Plaintiff’s physical ability to do work, nor did she explain how she took into account those
limitations into the RFC. The ALJ need not specifically include the limitations in the RFC, but she
must consider the combination of impairments, and explain how she incorporated the mental
limitations into the RFC. “In determining an individual’s RFC, the ALJ must evaluate all limitations
that arise from medically determinable impairments, even those that are not severe, and may not
dismiss a line of evidence contrary to the ruling.” Villano v. Astrue, 556 F.3d 558, 563 (7th Cir.
2009) (citing S.S.R. 96-8p; Golembiewski, 322 F.3d at 917); see also Underwood v. Colvin, No.
2:11-CV-354-JD-PRC, 2013 WL 2420874, at *2 (N.D. Ind. May 30, 2013) (“While it is true that
the ALJ need not specifically include limitations on concentration, persistence and pace in the RFC
finding, . . . the requirement that the ALJ “consider” such limitations has certainly been interpreted
to mean that a real “evaluation” of the effect of those limitations on the claimant’s ability to work
must take place. The ALJ did not do that, here. After finding mild limitations on concentration,
persistence and pace, the ALJ did not include those findings in the RFC; did not explain why or how
those findings were incorporated into the RFC as otherwise written; and in fact did not give any
indication that those findings were considered or evaluated at all in arriving at the RFC.”) (citations
omitted).
In this case, the RFC does not address any mental, intellectual, or emotional limitations, such
as a limitation to unskilled work or work that does not require significant amounts of reading.
Especially given the number of reports of low IQ, learning disorder, difficulty reading, and
depression, the failure to explain how the ALJ took Plaintiff’s mental and learning difficulties into

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account in the RFC or even minimally address the combined effects of Plaintiff’s impairments leaves
the Court unable to trace her reasoning. To the extent that the record does not contain enough
information to ascertain the effect of Plaintiff’s limitations on his ability to do work, including the
amount of time Plaintiff would be able to maintain concentration, persistence, and pace in a
workday, the ALJ is reminded of his responsibility to develop the record, which may include
ordering additional examinations or contacting medical sources to obtain records and evidence
necessary to making the determination. See, e.g., Barnett, 381 F.3d at 669 (“An ALJ has a duty to
solicit additional information to flesh out an opinion for which the medical support is not readily
discernable.”) (citing 20 C.F.R. § 404.1527(c)(3); SSR 96-2p, 1996 WL 374188 at *4 (July 2,
1996)); 20 C.F.R. §§ 404.1512(d)(1), 416.919(b)); see also Nelms v. Astrue, 553 F.3d 1093, 1098
(7th Cir. 2009) (citing 20 C.F.R. §§ 416.912(d)-(f), 416.919, 416.927(c)(3)) (other citations
omitted).
B.

Credibility Assessment
Plaintiff argues that the ALJ improperly evaluated his credibility. The Commissioner argues

that the ALJ’s opinion is supported by substantial evidence.
The ALJ must weigh the claimant’s subjective complaints, the relevant objective medical
evidence, and any other evidence of the following factors:
(i) [The claimant’s] daily activities;
(ii) The location, duration, frequency, and intensity of [] pain or other
symptoms;
(iii) Precipitating and aggravating factors;
(iv)The type, dosage, effectiveness, and side effects of any
medication . . . ;
(v) Treatment . . . for relief of [] pain or other symptoms;
(vi) Any measures . . . used to relieve your pain or other symptoms
. . . ; and
(vii) Other factors concerning [] functional limitations and
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restrictions due to pain or other symptoms.
20 C.F.R. § 404.1529(c)(3). In making a credibility determination, Social Security Ruling 96–7p
states that the ALJ must consider the record as a whole, including objective medical evidence, the
claimant’s statement about symptoms, any statements or other information provided by treating or
examining physicians and other persons about the conditions and how they affect the claimant, and
any other relevant evidence. See SSR 96-7p, 1996 WL 374186 (Jul. 2, 1996).
An ALJ is not required to give full credit to every statement of pain made by the claimant
or to find a disability each time a claimant states he or she is unable to work. See Rucker v. Chater,
92 F.3d 492, 496 (7th Cir. 1996). However, Ruling 96-7p provides that a claimant’s statements
regarding symptoms or the effect of symptoms on his ability to work “may not be disregarded solely
because they are not substantiated by objective evidence.” SSR 96-7p at *6. An ALJ’s credibility
determination is entitled to substantial deference by a reviewing court and will not be overturned
unless the claimant can show that the finding is “patently wrong.” Prochaska, 454 F.3d at 738.
Plaintiff argues that the ALJ erred in finding Plaintiff’s cane use not credible. In the
credibility portion of his opinion, the ALJ wrote: “While he testified that he has to use a cane to
ambulate, at no point in the records was the claimant’s gait categorized as impaired, limped, or
abnormal in anyway, nor was there any mention of a cane.” AR 20. She also noted that a cane had
not been prescribed. Not only do canes not require a prescription, but the ALJ even noted earlier
in the opinion that Plaintiff “uses a cane for stability and ambulation and has been doing so for 2 to
3 years as needed when his hip or knee condition is exacerbated.” AR 17 (emphasis added).
Furthermore, as Plaintiff points out, a number of medical records do reflect impairment of Plaintiff’s
gait. See AR 274 (“Positive for: Gait disturbance.”); AR 308 (“[Plaintiff] has antalgic gait.”).

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It is not apparent to the Court how Plaintiff’s use of ambulatory devices, even if only
occasional, makes his allegations of pain and limitation less credible rather than bolstering them.
See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (“Absurdly, the administrative law judge
thought it suspicious that the plaintiff uses a cane, when no physician had prescribed a cane. A cane
does not require a prescription.”); SSR 96-7p at *6 (“[A]llegations concerning the intensity and
persistence of pain or other symptoms may not be disregarded solely because they are not
substantiated by objective medical evidence.”). The regulations specifically remind ALJs to take
into account in their credibility determination that, for example, “[t]he individual’s daily activities
may be structured so as to minimize symptoms to a tolerable level or eliminate them entirely,
avoiding physical or mental stressors that would exacerbate the symptoms” and “the individual’s
symptoms . . . may be relieved with over-the-counter medications.” SSR 96-7p, at *8. The ALJ
failed to explain how use of non-prescribed medical devices or coping mechanisms shows that
Plaintiff’s allegations of pain are less than credible, rather than that Plaintiff uses assistive devices
because of the pain and weakness he experiences. In addition to raising questions about her
credibility assessment, the ALJ also did not include Plaintiff’s occasional need for a cane in the RFC
without explanation. See, e.g., Ross v. Barnhart, 119 F. App’x 791, 795 (7th Cir. 2004) (“‘The RFC
is an assessment of what work-related activities the claimant can perform despite her limitations.’
In considering a claimant’s RFC, an ALJ is expected to take into consideration all relevant evidence,
both medical and non-medical.”) (quoting Young, 362 F.3d at 1000); 20 C.F.R. §§ 404.1545(a)(1),
(a)(3); 416.1545(a)(1), (a)(3)). Although Plaintiff does not need to use a cane all of the time, the VE
testified that if he needed to use a cane while working, he would not be able to perform any of the
jobs described by the VE.

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Another important aspect of the ALJ’s credibility assessment was her mention of Plaintiff’s
daily activities as an indication that he suffers fewer limitations than alleged, including his ability
to occasionally babysit, clean, prepare meals, grocery shop, drive a car, and attend doctor’s visits
unaccompanied. Although she repeatedly mentions Plaintiff’s daily activities, she nowhere explains
how these basic acts of self-care, particularly given the reports that he performs them slowly, are
inconsistent with his limitations. The Seventh Circuit Court of Appeals has repeatedly criticized
credibility determinations that are based on a plaintiff’s ability to take care of his personal hygiene,
children, or household chores, as these alone are not sound bases for a credibility determination.
See, e.g., Moss v. Astrue, 555 F.3d 556, 562 (7th Cir. 2009) (“An ALJ cannot disregard a claimant’s
limitations in performing household activities. The ALJ here ignored [the plaintiff]’s numerous
qualifications regarding her daily activities” and methods of coping with pain); Gentle v. Barnhart,
430 F.3d 865, 867 (7th Cir. 2006) (“The administrative law judge’s casual equating of household
work to work in the labor market cannot stand.”); Zurawski, 245 F.3d at 887 (asserting that daily
activities, such as doing laundry, helping children prepare for school, cooking, and washing dishes
do not necessarily undermine or contradict a claim of disabling pain). To the extent that the ALJ
was also using Plaintiff’s ability to perform some activities of daily living as indicating an ability
to perform full-time work, the Seventh Circuit has repeatedly emphasized that a person’s ability to
perform daily activities does not indicate an ability to work outside of the home. See, e.g., Bjornson
v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) (“The critical differences between activities of daily
living and activities in a full-time job are that a person has more flexibility in scheduling the former
than the latter, can get help from other persons . . . and is not held to a minimum standard of
performance, as she would be by an employer. The failure to recognize these differences is a

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recurrent, and deplorable, feature of opinions by administrative law judges in social security
disability cases.”); Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011) (“[The Plaintiff’s] ability to
struggle through the activities of daily living does not mean that she can manage the requirements
of a modern workplace.”); Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir. 2006) (“We have
cautioned the Social Security Administration against placing undue weight on a claimant’s
household activities in assessing the claimant’s ability to hold a job outside the home . . . The
pressures, the nature of the work, flexibility in the use of time, and other aspects of the working
environment . . . often differ dramatically between home and office or factory or other place of paid
work.”).
The ALJ also notes that Plaintiff continued to work and look for work after his alleged date
of onset of disability and uses this as evidence that he is not disabled. Continuing to work after
disability begins does not necessarily mean that a person is not disabled. As the Seventh Circuit has
noted, “even persons who are disabled sometimes cope with their impairments and continue working
long after they might have been entitled to benefits.” Shauger v. Astrue, 675 F.3d 690, 697 (7th Cir.
2012); see also Gentle, 430 F.3d at 867 (“A person can be totally disabled for purposes of
entitlement to social security benefits even if, because of an indulgent employer or circumstances
of desperation, he is in fact working.”). Likewise, “[a] desperate person might force h[im]self to
work – or . . . certify that []he is able to work – but that does not necessarily mean []he is not
disabled.” Richards v. Astrue, 370 F. App’x 727, 732 (7th Cir. 2010) (citing Gentle, 430 F.3d at
867; Hawkins v. First Union Corp. Long-Term Disability Plan, 326 F.3d 914, 918 (7th Cir.2003)).
There are a number of errors in the ALJ’s assessment of Plaintiff’s credibility, and on
remand, the ALJ is directed to thoroughly explain his credibility assessment in accordance with the

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applicable regulations and fully account for his cane use.
CONCLUSION
For the foregoing reasons, the Court hereby GRANTS the relief requested in Brief in
Support of Plaintiff’s Motion for Summary Judgment [DE 20] and REMANDS this matter for
further proceedings consistent with this opinion.
SO ORDERED this 10th day of February, 2016.
s/ John E. Martin
MAGISTRATE JUDGE JOHN E. MARTIN
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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